Office of the Attorney General
State of Texas

Re: Whether State Purchasing and General Services Commission
may charge for copies of bid tabulations after they are sent out

Dear Mr. Foerster:

You have requested an opinion on whether the State Purchasing
and General Services Commission may charge for copies of bid
tabulations after they are sent out pursuant to Open Records
requirements.

The Open Records Act allows agencies to charge for
reproductions of public records requested by members of the
public. V.T.C.S. art. 6252-17a, s 9. Your request states that
the State Purchasing and General Services Commission would like
to implement a computerized system of supplying copies of certain
documents. Charges for such copies would be accumulated and
billed to the requesting party at the close of each month to
provide an efficient and expeditious means of handling the Open
Records requests. You further state that if the service to a
particular party proves to be voluminous and costly, a bid
deposit will be required to cover the cost of at least three
months service.

The basic question which must be answered is whether the
proposed system of billing after the copies have been sent out
constitutes a violation of article III, section 50 of the Texas
Constitution. Section 50 provides:

The Legislature shall have no power to give or to lend, or to
authorize the giving or lending, of the credit of the State in
aid of, or to any person, association or corporation, whether
municipal or other, or to pledge the credit of State in any
manner whatsoever, for the payment of the liabilities, present or
prospective, of any individual, association of individuals,
municipal or other corporation whatsoever.

You have advised that the state auditor has relied upon
Attorney General Opinion R-2358 (1951), since 1951 to take audit
exception to other state agencies' practices similar to that
which you propose. Attorney General Opinion R-2358 (1951) states,
with regard to section 50 of article III, that 'our laws
contemplate, it seems, that State offices or enterprises, the
management of which requires the collection of public funds or
charges, should be operated on a cash basis.' To defer the
payments of charges for copies of public records by means of a
monthly billing of the accumulated charges is just such an
extension of the state's credit which is constitutionally
proscribed. Although the State Purchasing and General Services
Commission might benefit from reduced administrative costs
through utilization of the deferred payment arrangement, the
potential for default of payment cannot be overlooked.
Administrative expediency cannot override constitutional
limitations.

You have directed our attention to McCarty v. James, 453 S.W.2d
220 (Tex. Civ. App.--Austin 1970, no writ), as precedent for the
deferred billing plan. In that case, the court of civil appeals
held that an act of the legislature which required that payment
in full for cigarette tax stamps be made within fifteen days from
the date the stamps were received by the distributor did not
violate section 50 of article III of the Texas Constitution for
the reason that it was not an extension of credit to anyone owing
a debt to the state of Texas. The court determined that the
distributor was a tax collector of a tax upon the transaction
which was collectible from the consumer. The distributor was in
much the same role as a retailer of items taxable under the
Sales, Excise and Use Tax, article 20.01, Taxation-General. The
court stated:

The Legislature, in this instance, has made, and commendably
we believe, an effort to partially relieve the burden of the
purchaser of cigarette stamps required to pay in advance a tax
which he does not owe by granting him fifteen days of grace
within which to recoup the cost of the stamps or the tax which
they represent.

The crucial distinction between the situation in McCarty v.
James, supra, and the plan to defer payment which you propose is
that the party requesting a copy of the public record pursuant to
article 6252-17a is the very party who owes the state for the
service, whereas the person paying for cigarette stamps is merely
responsible for collecting the tax from the consumer who owes it.

Your proposal includes the requirement of a deposit, pursuant
to section 11 of article 6151-17a to cover the cost of at least
three months service from parties whose request for copies are
voluminous and costly. Section 11 is captioned 'Bond for payment
of costs for preparation of public records or cash prepayment,'
and provides:

A bond for payment of costs for the preparation of such
public records, or a prepayment in cash of the anticipated costs
for the preparation of such records, may be required by the head
of the department or agency as a condition precedent to the
preparation of such record where the record is unduly costly and
its reproduction would cause undue hardship to the department or
agency if the costs were not paid.

The bond or cash prepayment provision is a measure designed to
protect an agency from the unnecessary use of man-hours,
equipment, and supplies in preparing public records in the event
that the requesting party withdraws its request or refuses to pay
for the records when they are ready. The procedure is completely
in keeping with the purpose of article III, section 50 of the
Texas Constitution. Such a procedure may be implemented by the
State Purchasing and General Services Commission.

SUMMARY

Article III, section 50 of the Texas Constitution prohibits
the State Purchasing and General Services Commission from
deferring until the end of each month the collection of charges
for copies of public Records The commission may require a
deposit to cover the cost of copying public records pursuant to
section 11 of article 6252-17a, V.T.C.S.